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Questioning fairness, judge delays trial

By Wendy Davis, Globe Correspondent, 3/6/2003

uling that the Archdiocese of Boston and its leaders could not presently receive a fair trial, Superior Court Judge Constance M. Sweeney yesterday delayed the first civil lawsuits in Massachusetts stemming from the sex abuse scandal until after mid-June.

''To state that the atmosphere is charged is an understatement,'' said Sweeney at a pretrial conference in lawsuits brought by Gregory Ford and Paul Busa, both alleged victims of the Rev. Paul R. Shanley. Sweeney scheduled another conference for the week of June 16, saying she will evaluate the ''atmospheric temperature'' at that time.

When issuing the postponement, Sweeney said that public comments had undermined the church's ability to receive a fair trial. ''I was not born yesterday,'' she said. ''The remarks are being made for purposes of influencing the outcome.'' Sweeney did not refer to any lawyer or party by name in her ruling.

Sweeney said yesterday that litigants have the right under the First Amendment to speak to the news media, but she also warned that defendants have a right to a fair and impartial jury. She cautioned that additional press coverage might lead to further delays. ''The more you charge the atmosphere, the more a potential jury pool is subject to extraneous influence, the longer it is going to take to get to trial,'' she said.

Lawyers for the plaintiffs had asked Sweeney to set trial dates this spring, in keeping with the timeline established for the case last year.

But J. Owen Todd, Cardinal Bernard F. Law's lawyer, opposed setting dates in the near future, arguing yesterday that the church and its leaders could not receive a fair trial in light of the ''relentless media attention,'' including the release of priests' personnel files and videotaped depositions of church leaders.

''My client, Cardinal Law, and each of the individual defendants represented by other counsel, believe they cannot receive a fair and just trial in the current climate,'' said Todd, who asked for a delay until at least October.

Wilson D. Rogers Jr., the lawyer for the archdiocese, also said that ''the publicity in this case has been extraordinary.'' In court yesterday, he blamed the plaintiffs' lawyers for the ongoing coverage.

Last week, Rogers notified plaintiffs' lawyer Roderick MacLeish Jr. that the archdiocese intends to ask Sweeney to issue a gag order restricting public comments in the case.

Sweeney previously indicated that she was concerned that publicity surrounding the cases would affect the defendants' ability to receive a fair trial, but never ordered the parties to restrict their comments to the media.

After the court hearing yesterday, MacLeish said he would heed Sweeney's ruling, but also defended his prior comments. ''We think it's important that everything be public in this case,'' he said outside the courtroom.

MacLeish also attempted to justify synthesizing lengthy public documents for the press, saying that most sex abuse victims, unlike the archdiocese, do not have access to public relations professionals to cull information for the media.

Also yesterday, Todd said in court that he believes the grand jury convened by Attorney General Thomas F. Reilly will hear testimony from a final witness on March 17 and will report on its investigation in April. He later said he believes that the grand jury will hear testimony from only two or three more witnesses including the Rev. Brian M. Flatley, who once wrote a memo calling convicted pedophile John J. Geoghan a ''real danger.''

A spokeswoman for the attorney general's office declined to comment on when the investigation would conclude. Todd said he anticipates the publicity will decrease after the grand jury concludes its investigation.

But Michael Avery, a professor at Suffolk University Law School, said he doubts that jurors will hold different opinions later this summer than at present. ''This cat is out of the bag,'' said Avery. ''I don't think it's going to make much difference when this case is tried.''

Todd also requested a change of venue to a location where the Globe is not as widely read. Sweeney denied that request, but said she will reconsider if selecting a jury in Middlesex County proves too time-consuming.

In another development, lawyers for the church asked for additional time to file papers that had been expected yesterday outlining trial strategy. Todd later said he anticipated filing the papers on Monday.

This story ran on page A18 of the Boston Globe on 3/6/2003.
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